Schmidt v. Unemployment Comp. Bd. of Review

MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI

Jack N. Schmidt (Claimant) has filed a petition for review from an order of the Unemployment Compensation Board of Review (Board) affirming the decision of the Referee denying his unemployment compensation benefits because he voluntarily terminated his employment without a necessitous and compelling reason as required by Section 402(b) of the Unemployment Compensation Law (Law). Finding no fault with the Board's decision, we affirm.

Act of December 5, 1936, Second Ex. Sess., P.L. (1937), 2897, as amended, 43 P.S. §802(b). That section provides:

An employe shall be ineligible for compensation for any week -
(b) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature irrespective of whether or not such work is in "employment" as defined in this act.

Claimant was employed by Combine Insurance (Employer) as a full-time insurance agent from December 12, 2010, until his last day of work on March 12, 2011, when he quit because he was not making enough money. Claimant filed for unemployment compensation benefits, which the Department of Labor and Industry denied. Claimant appealed, and a hearing was held before a Referee.

Before the Referee, Claimant, appearing pro se, testified that he notified Christie Meyers (Meyers), his territory manager, that he was quitting because he couldn't afford the job. "I wasn't making any money, other sales and paying gas and expenses. So I wasn't making enough money to live." (May 27, 2011 Hearing Transcript at 9.) While acknowledging that when he accepted the position it was 100% commission, he testified that he had reservations about the sales model and whether it would work for him because it was a lot of motivational training and reading scripts which began at "sales school" which Employer provided to its employees when they started working. He testified that he discussed his reservations with Rich Davis (Davis), Employer's Marketing Director, and they decided Claimant would give it two months to see how the job went. In that conversation, Claimant stated that Davis told him that when he started, he would receive two weeks of field training with his territory manager but that did not happen. The first week Claimant worked he only received two days in the field with his territory manager because his mother-in-law became ill and passed away and the second week he didn't work. Claimant stated that he told Meyers six times that he needed additional training because he was new to the insurance business and that he needed help but she was working with another agent.

Claimant also testified that he was required to go to a sales meeting every morning, which took him an hour and 15 minutes to drive to from his home - about 75 miles round trip. He did not know that the daily sales meeting was required when he accepted the job. The cost of driving when he had a 100% commission job was too expensive with no reimbursement. He stated that he attended about three meetings per week when he didn't have other sales calls to make. Claimant also stated that Employer told him that he would be given good leads to work with when he was hired but, in fact, he was just given pages with lists of businesses on them, not names of actual individuals who were interested in buying insurance policies. He testified that he was promised he would get internet leads but was only given two the entire time he worked for Employer.

Meyers testified on behalf of Employer stating that Claimant was informed that daily meetings were training sessions, would be conducted each day for the first 13 weeks and then beyond that as needed, was told the location of those meetings before he attended sales school and was told they were not optional. Meyers stated that they were originally held in Gilbertsville but she changed the location to Quakertown, ten miles from Claimant's home, because Claimant repeatedly requested a change and complained that it was too far for him to drive to the meetings. Meyers stated that Claimant did not attend those meetings regularly even after she changed the location, with Claimant attending the meetings maybe once a week. Meyers denied that Claimant did not receive the necessary training, explaining that the first week in the field he was completely unavailable, the second week, after being trained by Davis on Monday, he was unavailable on Tuesday due to health issues with his mother-in-law and then on Friday Meyers stated that she was with him until he received a phone call regarding his mother-in-law and he cut the day short. Meyers stated that Claimant did ask her about three times to have additional training but when training was scheduled, there were problems:

He had a funeral, which he had at least five different funerals between his mother-in-law and several friends or family members that he said he had to go to. There was one day that was his son's birthday. He had several days that were due to, he had car trouble or the car was in shop. I (inaudible) the electric was out in the town of, that he lives in so that he couldn't get out. He had another day that there was snow so he couldn't get out. One day (inaudible) a prescription for his wife and I mean there were a couple other days that he said that he was ill.
There was one day that he actually made himself available after (inaudible) that I went out with him and you know we made sales on that day and when I would you know try to train, accommodate him and, and train with him on other days, he had a multitude of reasons why he couldn't make it and he would call last minute and not make it anywhere from his car being down, he had several funerals that he claimed he had to attend. There was a couple of days he said he couldn't drive because of the snow. The electric was out in his town. He had a number of different reasons as to why he could
not be available you know at the time or the, the dates that we had, that I had arranged to meet with him.

(May 27, 2011 Hearing Transcript at 25, 27.) Meyers stated that she had at least five documented times that Claimant stated that he was not available for the additional training she had scheduled for him.

As for the leads Claimant was given, Meyers stated that Claimant was given leads for businesses in his assigned area that were for cold calls for new business. She also testified that she told Claimant that the majority of the job was cold calling, and Claimant told her he was very comfortable with cold calling because he had done that for a number of years when he owned his own business. Regarding internet leads, Meyers testified that some internet leads might come up that he could use every day. (May 27, 2011 Hearing Transcript at 31.)

The Referee denied benefits and made the following relevant finding of facts:

3. The employer agreed to provide leads for prospective business which it did.
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5. The claimant was dissatisfied with his training in part because he had been unavailable for several scheduled days of training.
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7. The claimant resigned his position informing the employer he was dissatisfied with their [sic] sales model and it was not working out for him.

The Referee concluded that Claimant accepted the position knowing that it was a sales position and paid by commission only, and he was scheduled for a term of field training but it was not fully provided to him due to his unavailability. Employer had provided daily training to the other agents at meetings which Claimant did not always attend. Employer had also provided Claimant sales leads which Claimant felt were inadequate, and Claimant felt his assigned territory was not viable even though Claimant was aware of his territory at the time he was hired. Although Claimant was dissatisfied with his position because he was not making enough money, the Referee determined that Claimant was aware of the terms and conditions of his employment when he accepted the position, and he had failed to establish a necessitous and compelling reason for voluntarily leaving his employment. Claimant appealed to the Board, which affirmed, and this appeal by Claimant followed.

Our scope of review of the Board's decision is limited to determining whether an error of law was committed, constitutional rights were violated or findings of fact were supported by substantial evidence. Frazier v. Unemployment Compensation Board of Review, 833 A.2d 1181 (Pa. Cmwlth. 2003).

Claimant, now represented by counsel, contends that the Board's findings of fact numbers 3, 5 and 7 are not supported by substantial evidence. Regarding finding of fact number 3, he argues that while Employer provided him with so-called leads for prospective sales, in reality, the "leads" were just the names of businesses in the area and were not the names of "warm leads" or businesses/persons who were actually interested in purchasing insurance from Employer. Claimant also argues that although he was told he would be given leads via the internet, he only received two internet leads during the three months he was employed by Employer.

Here, Meyers (EW1) testified as follows regarding Claimant's contention that he was going to be given "warm leads" to call on:

C: Did you tell me that the leads that were to be provided were warm leads?
R: Were what?
C: Were warm.
R: Warm?
C: Warm leads, active customers and a small percentage of the sales would be cold calling?
EW1: No actually I told you the majority maybe 75% is the expectation (inaudible) sales and you indicated that you were very comfortable with cold calling and that you had done that for a number of years when you owned your business. And we also advised, I advised you that there's nine avenues (inaudible) leads cards active, lapsed, neighbor, business leads you know you would be given but there are also other you know referrals, you know some internet leads and the other different avenues that might you know come, come up and that you could, that you could everyday use.
C: Yeah.
EW1: But the, the majority of the job is cold calling.
R: You were promised internet leads?
C: Yeah leads that would come across the internet.
R: And did you get any?
C: I got two the entire time I was there.
R: Well did they promise you any more than two?
C: They didn't prom - they just said you will get internet leads what they considered gold they said.

(May 27, 2011 Hearing Transcript at 31.) Regarding the internet leads, Claimant testified as follows: (May 27, 2011 Hearing Transcript at 17.) (Emphasis added.) Here, Employer's witness testified not only that Claimant was provided with leads but that Employer never promised Claimant that the leads would be "warm leads." Further, Claimant admitted that Employer did not promise to provide internet leads. Because the Board as the ultimate factfinder found that Employer had agreed to provide leads for prospective business and did, in fact, do so, there was sufficient evidence to support the Board's finding of fact number 3, and Claimant's argument is without merit.

The Board is the ultimate factfinder and determiner of credibility in unemployment cases. McCarthy v. Unemployment Compensation Board of Review, 829 A.2d 1266 (Pa. Cmwlth. 2003).

Claimant also argues that finding of fact number 5, regarding his dissatisfaction with his training, was due to the fact that his mother-in-law died during the second week of his employment and he took some time off the following week to attend her funeral. Aside from that emergency, Claimant argues that he was readily available for training and work. He also contends that he repeatedly requested help for sufficient on-the-job training as promised, not just training at meetings as Employer testified to during the hearing.

However, Meyers testified that Claimant only asked her three times for additional help, and she attempted to schedule him numerous times but he cancelled repeatedly. Meyers cited a variety of reasons that Claimant cancelled ranging from multiple funerals, his child's birthday, bad weather, his own illness, car trouble, the town's lack of electricity, picking up a prescription for his wife and others. Because the Board apparently found Meyers more credible than Claimant in this regard as to his availability, we will not disturb this credibility determination on appeal and conclude that there is sufficient evidence to support a finding that Claimant's dissatisfaction with his training was due to his own scheduling problem, not Employer's.

Finally, regarding finding of fact number 7, Claimant contends that he did not quit his employment just because he was dissatisfied with Employer's sales model and that it was not working for him. Claimant argues that he left his employment because he was not making enough money to live on or support himself and his family. Claimant explains that he incurred extensive costs when he was required to attend morning meetings several days a week that resulted in a one hour and 15 minute commute each way. He put about 400 miles on his car each week for which there was no expense reimbursement. Claimant states that he never made anywhere near the compensation that Employer led him to believe he would make at the onset of his employment.

While Claimant argues that he did not make the money he had hoped to, there is no question that when Claimant accepted the position, he was aware of Employer's sales model, even commenting at the onset that it might not be for him. He also knew that the position was a 100% commission-based job. He also was aware that he was required to attend morning meetings as part of his continued training, and despite his complaints of his long commutes to those morning meetings and the alleged costs involved, Employer testified that they were changed to a more convenient location for Claimant, which was actually ten miles from his home. Claimant did not dispute that fact at the hearing. If Claimant did not earn the income he expected while working for Employer, it was not due to Employer's lack of attempts to help Claimant. Because Claimant testified that he quit his job because he was not earning enough money to live on and the sales model was not working for him, there is sufficient evidence to support finding of fact number 7.

Because findings of fact numbers 3, 5 and 7 are supported by substantial evidence, the Board did not err in denying Claimant unemployment compensation benefits. Accordingly, the order of the Board is affirmed.

Claimant also contends that he terminated his employment because Employer failed to compensate him at even the minimum wage rate. However, because Claimant failed to raise this issue before the Referee and Board, it is waived on appeal before this Court. See Pa. R.A.P. 1551(a). --------

/s/_________

DAN PELLEGRINI, President Judge ORDER

AND NOW, this 1 day of May, 2012, the order of the Unemployment Compensation Board of Review, dated August 24, 2011, at No. B-522177, is affirmed.

/s/_________

DAN PELLEGRINI, President Judge